[2024] UKUT 00323 (IAC)

After 31 December 2020 the Qualification Directive no longer had effect in the United Kingdom.

We can see no reason why the broad principles identified in Essa should not continue to apply to decisions made post-EU exit. The immigration rules continue to refer to ‘revocation’ of leave to remain as a refugee in similar terms and the terminology used in sections 82 and 84 NIAA 2002 currently are the same.

However, post-EU exit, a grant of leave to remain as a refugee no longer acts as a grant of European Refugee Status, but is an act done under domestic law because a person meets the requirements of paragraph 334 of the immigration rules to be recognised as a refugee.

Post-EU exit, a decision to ‘revoke’ leave to remain as a refugee is no longer a decision giving effect to Article 14 of the Qualification Directive, but an act done under domestic law to remove the mechanism by which a person’s Convention Refugee Status under international law normally is recognised under domestic law.

The immigration rules continue to provide a ‘national gloss’ on the Refugee Convention by providing for revocation of leave to remain as a refugee in the following circumstances:

There continues to be a right of appeal against a decision to revoke ‘protection status’ under section 82 NIAA 2002. The appealable decision relates to revocation of leave to remain as a refugee granted under the immigration rules. However, the disconnect in the wording used in the relevant ground of appeal as highlighted in Essa remains. The relevant ground of appeal is whether the decision to revoke leave to remain breaches the United Kingdom’s obligations under the Refugee Convention.

If the Secretary of State’s ground for revocation is cessation or exclusion, it will be necessary for the Tribunal to consider whether the person comes within the cessation or exclusion clauses of the Refugee Convention. If they do, then the decision to revoke leave to remain is unlikely to breach obligations under the Refugee Convention because the person does not have Convention Refugee Status or any of the rights and benefits associated with it.

If the ground for revocation is that the person is a danger to the community, the Tribunal is required to consider the statutory scheme contained in section 72 NIAA 2002, which is said to apply for the ‘construction and application of Article 33(2) of the Refugee Convention’. If the Tribunal concludes that the person has not rebutted the presumption that he is a danger to the community it is required by operation of section 72(10) to dismiss the appeal in so far as it relies on Refugee Convention grounds.

Where leave to remain as a refugee is revoked solely with reference to section 72 NIAA 2002, and the cessation or exclusion clauses have not been applied, the dismissal of the appeal with reference to section 72(10) is unlikely to be problematic because it is likely that the person continues to have Convention Refugee Status.

The situation might be different where the decision to revoke a person’s leave to remain as a refugee is made in conjunction with a decision to cease or exclude a person from Convention Refugee Status. The application of section 72(10) NIAA 2002 is a technical mechanism requiring the appeal to be dismissed without affording the person an adequate opportunity to determine whether their Convention Refugee Status continues with reference to the relevant ground of appeal contained in section 84(3).

In appeals involving decisions to revoke protection status on the ground that the person has ceased to be or is excluded from refugee status, and where a person has failed to rebut the presumption that they are a danger to the community under section 72 NIAA 2002, findings of fact still need to be made to determine whether the person has Convention Refugee Status. This might need to be done to give effect to any rights and benefits still conferred by the Convention to a ‘removable refugee’ pending their removal from the UK. To this extent, it is material to a proper determination of the relevant ground of appeal relating to the Refugee Convention even if the overall outcome of the appeal is determined by operation of statute.